Writ Petition No. 8524 of 2022 · Bombay High Court
Case Details
wp8524.22- -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8524 OF 2022 Pandurang Hari Shelke Versus … Petitioner The State of Maharashtra and others … Respondents Mr. R. D. Bhalerao, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 6472 OF 2022 Madhukar Bhavanrav Sudgir and others … Petitioners Versus The State of Maharashtra and others ….. … Respondents Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 6892 OF 2022 Madhuri Bharatrao Pardeshi … Petitioner Versus The State of Maharashtra and others … Respondents ….. Mr. Suresh Pidgewar, Advocate h/f Mr. N. L. Chaudhari, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 8414 OF 2022 Santosh Kondiram Salve Versus … Petitioner The State of Maharashtra and others … Respondents wp8524.22- -2- ….. Mr. R. D. Bhalerao, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 8415 OF 2022 Latabai Balu Kachare and others … Petitioners Versus The State of Maharashtra and others … Respondents
Legal Reasoning
Mr. R. D. Bhalerao, Advocate for petitioners Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 8416 OF 2022 Namdeo Dhondiba Dagale Versus … Petitioner The State of Maharashtra and others … Respondents Mr. R. D. Bhalerao, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 8418 OF 2022 Sachin Lahanu Kakad Versus … Petitioner The State of Maharashtra and others … Respondents Mr. R. D. Bhalerao, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 8419 OF 2022 Ashok Eknath Gode Versus … Petitioner The State of Maharashtra and others … Respondents ….. wp8524.22- -3- Mr. R. D. Bhalerao, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 8420 OF 2022 Swapnil Bharat Sonawane … Petitioner Versus The State of Maharashtra and others … Respondents Mr. R. D. Bhalerao, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 8421 OF 2022 Prasad Sopan Pichad Versus … Petitioner The State of Maharashtra and others … Respondents Mr. R. D. Bhalerao, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 8422 OF 2022 Navnath Khandu Dhongade … Petitioner Versus The State of Maharashtra and others … Respondents Mr. R. D. Bhalerao, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 8536 OF 2022 Pramila Supa Vasave and others … Petitioners Versus The State of Maharashtra and others … Respondents ….. Mr. Suresh Pidgewar, Advocate h/f Mr. N. L. Choudhari, Advocate for petitioners wp8524.22- -4- Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 8569 OF 2022 Madhu Homa Padvi and others … Petitioners Versus The State of Maharashtra and others … Respondents ….. Mr. Suresh Pidgewar, Advocate h/f Mr. N. L. Choudhari, Advocate for petitioners Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 8721 OF 2022 Nitinkumar Yogesh Sonwane … Petitioner Versus The State of Maharashtra and others … Respondents ….. Mr. Suresh Pidgewar, Advocate h/f Mr. N. L. Choudhari, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 8725 OF 2022 Shankar Dhansing Vasave and others … Petitioners Versus The State of Maharashtra and others … Respondents ….. Mr. Suresh Pidgewar, Advocate h/f Mr. N. L. Choudhari, Advocate for petitioners Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 8727 OF 2022 Ramnya Gondya Vasave and others … Petitioners Versus The State of Maharashtra and others … Respondents wp8524.22- -5- ….. Mr. Suresh Pidgewar, Advocate h/f Mr. N. L. Choudhari, Advocate for petitioners Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 9164 OF 2022 Bhupesh Sakharam Valvi and others … Petitioners Versus The State of Maharashtra and others … Respondents Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 9165 OF 2022 Ramesh Chamarya Vasave and others … Petitioners Versus The State of Maharashtra and others … Respondents Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 9166 OF 2022 Dinesh Magan Valvi and others … Petitioners Versus The State of Maharashtra and others … Respondents Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 9167 OF 2022 Kiran Dasharath Padvi and others … Petitioners Versus The State of Maharashtra and others … Respondents wp8524.22- -6- ….. Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 9168 OF 2022 Bhavsing Chhagan Pawara and others … Petitioners Versus The State of Maharashtra and others … Respondents Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 9169 OF 2022 Krushna Rama Dharane Versus … Petitioner The State of Maharashtra and others … Respondents Mr. A. T. Kanawade, Advocate for petitioner Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 9285 OF 2022 Paresh Bhaurao Chavan and others … Petitioners Versus The State of Maharashtra and others … Respondents Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 9286 OF 2022 Vilasrao Sahebrao Borse and others … Petitioners Versus The State of Maharashtra and others … Respondents ….. wp8524.22- -7- Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. WITH WRIT PETITION NO. 9287 OF 2022 Shivaji Motya Valvi and others … Petitioners Versus The State of Maharashtra and others … Respondents Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 9288 OF 2022 Prakash Bhika Patil and others … Petitioners Versus The State of Maharashtra and others … Respondents Mr. U. R. Avate, Advocate i/b Talekar & Associates for petitioners Mr. P. S. Patil, AGP for respondents ….. ….. WITH WRIT PETITION NO. 10359 OF 2022 Ramdas Shivaji Pawra and others … Petitioners Versus The State of Maharashtra and others … Respondents ….. Mr. Suresh Pidgewar, Advocate h/f Mr. N. L. Choudhari, Advocate for petitioners Mr. P. S. Patil, AGP for respondents ….. CORAM : RAVINDRA V. GHUGE AND SANJAY A. DESHMUKH, JJ. DATED : 19th OCTOBER, 2022. PER COURT :- 1. In all these matters, we had passed an order on 22.08.2022 wp8524.22- -8- which reads as under:- “1. The following matters were on the board dated 18.08.2022 at Sr.Nos. 1002-1004 and 1006-1010. At the request of the learned Advocate for the petitioners and the consent of the learned AGP, all these matters are taken on board today. 2. These are yet another group of cases wherein the petitioners' claim to be Primary Ashram School Teachers working in the Tribal areas and are seeking regularization after completing 10 years in employment in the light of the first judgment of this Court dated 31.10.2018 delivered in WP No.5867/2015 filed by Madhukar Bhavanrao Sadgir and others Vs. State of Maharashtra and others. 3. We find that there is a continuous inflow of such petitions wherein such petitioners' claim permanency on the ground that they have completed 10 years as Primary Ashram School Teachers in tribal areas, on the basis of the judgment delivered in Madhukar Sadgir case (Supra). Such employees are working in the Primary and Secondary Teaching Category as well as in the Non Teaching Categories. 4. We have noted that the Law laid down by the Hon’ble Supreme Court in Secretary, State of Karnataka & Ors. vs. Uma Devi (3) & Ors., 2006(4) SCC 1, prescribing a of one time measure for regularizing such employees, was also relied upon by this Court when the judgment in Madhukar Sadgir (supra) was delivered. However, there are several petitions which are continuously filed in this Court, the moment the petitioner completes 10 years and now this appears to be an endless exercise of regularizing backdoor entrants. 5. Issue notice to the respondents. The learned AGP waives service of notice on behalf of all the respondents.
Decision
6. We direct the State to place before us a complete list of all wp8524.22- -9- such Primary Ashram School Teachers working in the tribal areas/such areas to which the provisions of the Panchayat (Extension to Scheduled Areas) Act, 1996 are applicable and are presently in employment of the Government Aided Primary Post Basic Ashram Schools Class-III. Let such data be produced before us on the next date. 7. At the request of the learned AGP, we are listing these petitions on 12.09.2022 in the “Urgent Admissions Category”. 2. On 13.09.2022, we passed a further order, which reads as under:- “1. Writ Petition Nos. 9285 of 2022, 9286 of 2022, 9287 of 2022 and 9288 of 2022 are not listed today. By consent of the parties, they are taken on board. 2. Pursuant to our order dated 22/08/2022, the learned Assistant Government Pleaders submit in all these matters that the Government has initiated the steps and policy is likely to be devised so as to ensure that people who have completed more than ten years in service in the teaching and non-teaching category, would be covered by such policy keeping in view the law laid down by the Hon’ble Supreme Court in the matter of Secretary, State of Karnataka and others Vs. Umadevi and others, (2006) 4 SCC 1. He prays that these matters may be listed after four weeks in order to enable the Government to place before the Court, the progress made towards formulating a policy. 3. In view of the above and as all the parties agreed that these matters be kept pending, stand over to 10/10/2022 in the urgent orders category. 4. These petitioners would continue in service and would not be terminated only on the ground that their claims for regularization are wp8524.22- -10- pending before the State Government.” 3. On 10.10.2022, we recorded a communication received by the learned A.G.P. dated 7.10.2022 which is marked as “X” for identification. The order passed on 10.10.2022 reads as under:- “1. The learned AGP has placed on record the communication received by him dated 07.10.2022 from Shri Pawankumar Bandgar, Desk Officer, Tribal Development Department, Government of Maharashtra, Mantralaya, Mumbai. The same is marked as “X” for identification. 2. Since it appears from the communication “X” that the Government is taking a policy decision with regard to granting regularization to all members of teaching and non teaching category working in the schools operated by the Tribal Development Department in the light of the judgment delivered on 31.10.2018 in Writ Petition No.5867/2015 filed by Madhukar Bhavanrao Sadgir and others vs. The State of Maharashtra and others, that these Writ Petitions shall be listed on 19.10.2022 in the “disposal” category.” 4. The learned A.G.P. has placed before us a communication received by him dated 18.10.2022, from Shri. Pawankumar Bandgar, the Desk Officer, Tribal Development Department, Government of Maharashtra. The Same is taken on record and marked as “Y” for identification. 5. The learned A.G.P. specifically points out paragraphs 2, 3 and 4 from the document “Y”, which are reproduced herein under:- wp8524.22- -11- “2, 3 and 4” “2- lnj izdj.kh ek- mPPk U;k;ky;] [kaMihB vkSjaxkckn ;kauh fn-10-10-2022 jksth fnysY;k vkns”kkP;k vuq’kaxkus dGfo.;kr ;srs dh] vkfnoklh fodkl foHkkxkvarxZr “kkldh; vkJe”kkGk@olfrx`gkae/;s dk;Zjr jkstankjh@rkfldk rRokojhy deZpk&;kauk fu;fer dj.ksckcr nk[ky dj.;kr vkysY;k fofo/k ;kfpdsrhy ek- U;k;ky;kP;k vkns”kkrhy fud’kkaph iwrZrk dj.kk&;k ;kfpdkdR;kZa deZpk&;kauk fu;fer dj.;kP;k vuq’kaxkus /kksj.kkRde fu.kZ; ?ks.;kps izLrkfor vkgs- R;kuq’kaxkus lkekU; iz”kklu foHkkxkP;k funsZ”kkuqlkj jkstankjh deZpk&;kph ekfgrh loZ vij vk;qDr] vkfnoklh fodkl dk;kZy;kdMwu izkIr d#u ?ksmu R;kph rikl.kh d#u ,df=r ekfgrh “kklukl lknj dj.;klkBh vk;qDrky; Lrjkoj fn-22-09-2022 P;k vkn”kkUo;s lferh xBhr dj.;kr vkyh vkgs- 3- lnjhy lferhus fn-29-09-2022 rlsp fn-11-10-2022 vUo;s lknj dsysY;k ekfgrhph ea=ky; Lrjko#u rikl.kh djrkauk jkstankjh rRokojhy dk;Zjr dkgh deZpk&;kaps fu;qDrh vkns”k osxosxG;k “kkGsr vlY;kewGs ,df=ri.ks miyC/k >kys uOgrs- R;kewGs R;k dkyko/khr R;kapk [kaM fnlwu ;sr gksrk- vls deZpkjh ik= vlY;kl R;kaP;koj vU;k; gksm u;s Eg.kwu izdYi vf/kdkjh] ,dkfRed vkfnoklh fodkl izdYi rlsp lacaf/kr “kkGsojhy eq[;k/;kid ;kauk lacaf/kr deZpk&;kaP;k loZ vko”;d dkxni=kalg fn-16-10-2022 jksth ea=ky; ;sFks iMrkG.khlkBh cksyfo.;kr vkys gksrs- fn-16-10-2022 jksth lafnX/k ekfgrh vlysY;k deZpk&;kackcrP;k ekfgrhph “kgkfu”kk d#u R;kr vko”;d nq#Lrh dj.;kr vkyh vkgs- ek=] izdYi vf/kdkjh] ,dkfRed vkfnoklh fodkl izdYi] dGo.k] rGknk rlsp ukf”kd ;k {ks=kr xzkeiapk;rhph fuoM.kwd vlY;kus dkgh “kkGkaojhy ekfgrh fn-16-10-2022 jksth miyC/k gksm “kdyh ukgh- rsFkhy lacaf/kr “kkGsrhy deZpk&;kackcrph ekfgrh fn-17- 10-2022 o fn-18-10-2022 jksth lacaf/kr eq[;k/;kid o izdYi dk;kZy;krhy vf/kdk&;kaP;k mifLFkrhr rikl.;kr vkyh vlwu ts deZpkjh ik= B# “kdrkr v”kkackcrps fu;qDrh vkns”k@osruns;sd b- dkxni=kaph Nkuuh d#u rh feGfo.;kph dk;Zokgh lq# vkgs- lnjhy ik= mesnokjkaph vpwd ;knh r;kj dj.;kps dke fn-21- 10-2022 i;Zar iw.kZ dj.;kr ;sbZy- 4- ;kf”kok; lnj ;kfpdkdR;kZ deZpk&;kapk lsok dkyko/khph x.kuk dj.;kP;k vuq’kaxkus vk;qDr] vkfnoklh fodkl] ukf”kd rlsp vU; {ks=h; dk;kZy;kauk ;s.kk&;k vMp.khaP;k vuq’kaxkus fn-01-07-2022 P;k vkns”kkuqlkj dk;Zokgh dj.;kP;k n`f’Vus Li’Vrk ;s.;klkBh ekxZn”kZu feG.ksckcr ek- mPp U;k;ky; vkSjaxkckn ;sFks nk[ky fjV ;kfpdk dz-5867@2015 e/khy flOghy vWIyhds”ku dz- 23443@2022 o fjV ;kfpdk dz-2196@2013 e/khy flOghy vWIyhds”ku dz- 23445@2022 nk[ky dj.;kr vkys vkgs- lnj izdj.kh ek- U;k;ky;kps ekxZn”kZu izkIr >kY;kl vpwd ekfgrhlg ;kckcrpk izLrko ek- ea=heaMGkleksj lknj d#u R;kckcrpk “kklu fu.kZ; rkRdkG fuxZfer dj.;kr ;sbZy-” 6. Though we find that direction of this court in paragraph No.21 in the judgment dated 31.10.2019, passed in writ petition No. 5867 of 2015, filed by Madhukar Bhavanrao Sadgir and others vs. The State of Maharashtra and others and connecting petitions, is very clear, the learned A.G.P. submits that his officials are under wp8524.22- -12- confusion as regards what is to be done with reference to the following type of cases:- “a. Those who have worked intermittently for some period, and have not completed 10 years in continuous employment. b. The cases wherein the candidates have presented their first appointment order and the last appointment order, and were not in employment for the periods ranging 1 to 5 years or even more in between these two engagements. c. Covid-19 pandemic lockdown period from 24.3.2020 till lifting of the restrictions in 2021. d. The date from which the monetary benefits can be granted in the light of clause 21(iii) of the judgment delivered in Madhukar Bhavanrao Sadgir’s case (supra). 7. We are of the view that, answers to the above raised queries of the Government are found in the judgment delivered in Madhukar Bhavanrao Sadgir (supra), in paragraph No.8 of the order dated 1.7.2022 delivered by this Court in Contempt Petition No. 327 of 2022 (Rakesh Vasant Vasave and another vs. Anup Kumar Yadav Secretary and others) and in paragraph No.5 of the order dated 13.7.2022, passed on the motion for speaking to the minutes of the order dated 1.7.2022. 8. For the sake of clarity and to avoid confusion, we are wp8524.22- -13- reproducing the directions set out by this court below paragraph 21((i) to (iv) in Madhukar Sadgir (supra), paragraph No. 8(a) to (e) from order dated 1.7.2022 and paragraph No.5 of the order dated 13.7.2022, read here under:- “21. (i) The respondents shall regularize the services of the petitioners who have completed ten years of service with effect from the date they have completed ten years or the date of filing of writ petition whichever is later. (ii) Those petitioners who are terminated after completion of ten years of service during the pendency of the writ petition shall be reinstated and shall be granted regularization from the date they have filed the petition or after completion of ten years of service whichever is later. (iii) For all practical purposes the services of the petitioners shall be considered regular from the date as observed above. However, we may not grant them actual financial benefit for the period prior to the present order. They will be entitled for the regular pay scale from 01.011.2018. (iv) The respondents shall count the services of the petitioners from their date of appointment continuously for counting ten years of their service.” “8. a) We grant only 10 (ten) weeks’ time, meaning thereby, the State would complete the entire exercise of verification by 15 th September, 2022, on the lines on which the verification exercise (5) was conducted for the petitioners in Contempt Petition No.238 and 388 of 2019. b) Those who are held to be eligible, would be included in the Government Resolution to be issued within 21 days after 15 th wp8524.22- -14- September, 2022, on the lines of the Government Resolution dated 12.04.2022. Within 21 days thereafter the eligible candidates would be regularized. c) Those candidates/petitioners who are held to be ineligible, would be intimated by the State through an individual communication, setting out reasons on the basis of which they are held to be ineligible. d) The said communication would be issued to them within 15 days after 15th September, 2022 i.e. by 30th September, 2022. e) The aggrieved petitioners/candidates would be at liberty to avail of a remedy, as may be, permissible in law for seeking redressal of their grievance against their being declared ineligible.” “In view of the above, following sentences; ‘The petitioners in both these petitions are found to be eligible. They would, thus, be given the benefits of the judgment of this court dated 31-10-2018’. shall be replaced by the following sentences:- “Those petitioners, amongst the petitioners in these two contempt petitions, who have been found eligible today, would be given the benefits of the judgment of this court dated 31-10- 2018”.” 9. In so far as the queries by the State Government are concerned, we observe as under:- Query (a) Those employees who have not completed 10 years in continuous service in the light of the paragraph 21(i) and wp8524.22- -15- (iv), would not be entitled for the benefits, save and except in terms of any policy decision that the State Government would be introducing to deal with this entire issue in the State of Maharashtra. Query (b) Considering paragraph 21(i) and (iv), those employees, who have presented their first appointment order and are out of employment for periods ranging from one year and above, or those are presently in employment with a gap and are not in continuous in employment, would not be entitled for regularization, save and except in terms of the policy that would be introduced by the State Government for such employees in the State of Maharashtra. Query (c) Since the Government itself granted several concessions to the employees, those who could not work and discharge their duties due to Covid-19 pandemic lock down, would be considered to be in continuous employment during the Covid pandemic lock down period, provided they were in employment immediately prior to the lock down and were also in employment immediately after withdrawal of lock down restrictions, inclusive of the vacation period. Query (d) The answer to query (d) lies in paragraph 21(iii). For clarification, we would observe that those employees who have completed 10 years in employment and have filed their writ petitions later on, would be entitled for the monetary benefits either from 1.11.2018 or the date on which they completed 10 years, whichever is later. In cases where the candidates have preferred writ petitions, prior to completing 10 years in service, would be entitled for the regular pay scale/monetary benefits from 1.11.2018 or from the date they have completed 10 years of employment, whichever is later. wp8524.22- -16- 10. In view of the above, we deem it appropriate to direct further, with the consent of the petitioners, as under:- i) As the State Government has informed us, vide communication “Y”, that the service details of all these petitioners, and similarly placed employees, in the State of Maharashtra, is being collected and verification would be completed by 21.10.2022, we grant further period to the State Government in order to avoid any mistake or discrepancy, to complete such exercise of verification, till 30.11.2022. ii) Pursuant to the above and our clarification set out in the foregoing paragraphs, read with the earlier orders, the State would prepare a list of eligible candidates and ineligible candidates. In so far as ineligible candidates are concerned, the State Government shall assign specific reasons in each case, concluding in the light of our orders, as to why they are held ineligible. The cases of those, who are held eligible, would be forwarded to the Competent Government department of the State of Maharashtra for framing a policy to grant regularization to such candidates and thereafter issue orders of regularization, as expeditiously as possible and not later than 31.01.2023. iii) Those cases, which are found to be ineligible while verifying wp8524.22- -17- the record, if are found to be worthy of consideration in the light of the terms of any policy decision that State Government may introduce, we leave it to the State Government to take a decision with regard to such cases as well, preferably on or before 15.03.2023. iv) After the entire exercise is completed and if any candidate from teaching or non teaching categories is found to be ineligible, specific orders rejecting their proposal would be passed and the said orders would be served upon such candidates on their last known address or through the institution, in which they are working on or before 15.4.2023. 11. In view of the above, those petitioners and similarly situated employees in the State of Maharashtra, who are in employment today, shall not be discontinued from employment only on the ground that they are temporary and their proposals are pending. 12. Considering the above and by consent of the parties, these petitions are disposed off. (SANJAY A. DESHMUKH, J.) (RAVINDRA V. GHUGE , J.) rlj/